Smith v. State

1

KENVAIRIAY JEVERA SMITH, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-22-00491-CR

Court of Appeals of Texas, Fifth District, Dallas

October 30, 2023

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the Criminal District Court No. 3 Dallas County Texas Trial Court Cause No. F-2076131-J

Before Justices Goldstein, Garcia, and Miskel

MEMORANDUM OPINION

DENNISE GARCIA JUSTICE

A jury convicted appellant of murder and assessed punishment at sixty-five years in prison. In four issues, he argues his conviction should be reversed because (i) the evidence is insufficient to support the jury's rejection of his self-defense claim, (ii) the trial court erred by failing to instruct the jury on the presumption of reasonableness, (iii) the jury charge failed to limit definitions of the culpable mental states to the appropriate result of conduct elements and (iv) the punishment phase jury instruction on sudden passion allowed a non-unanimous verdict on the special issue. In a cross-point, the State requests that we modify the judgment to show an affirmative deadly weapon finding. We modify the judgment and as modified, affirm.

I. Background

At 4:00 a.m. on the morning in question, Michael Johnson saw Theron Crawford, Michelle Nwachi ("Shay"), and appellant standing in front of his house.^[1]Crawford owed Shay $50 for drugs, and she was trying to collect. Johnson walked out to the group, but subsequently returned to his porch.

Initially, appellant was standing with Shay, but then went to his car while Shay was yelling at Crawford. Johnson went inside for about a minute and returned to the porch. Johnson then saw appellant standing in the street yelling at Crawford about the money. He heard four shots and dropped to the ground on his porch. Crawford fell in the yard bleeding and the others ran away. The medical examiner subsequently determined that Crawford died as a result of three gunshot wounds.

Appellant was charged with murder and arrested. His phone was seized incident to arrest and searched pursuant to a warrant.

The case was tried to a jury. Text messages sent from appellant's phone on the day of the shooting were admitted into evidence, including a message he sent to his girlfriend saying, "u need to call me asap I just f-d call me asap" and messages to "Big Bro Ee" at 5:10 a.m. saying "call me asap," and "I just shot a n- four times."

Detective Ronald Kramer, the lead homicide detective who interviewed appellant, testified about his investigation and interview of appellant. The videotape of that interview was admitted into evidence without objection.

Johnson, two responding officers, a forensic pathologist, and Crawford's mother also testified at trial. Both the guilt/innocence charge and the punishment charge were submitted to the jury without objection.

The jury found appellant guilty and assessed punishment at sixty-five years in prison. This timely appeal followed.

II. Analysis

A. Self-Defense

The jury was charged on the law of murder and on self-defense. Appellant's first issue argues the evidence is insufficient to support the jury's rejection of his self-defense claim. We disagree.

A person commits the offense of murder if he (1) intentionally or knowingly causes the death of an individual, or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1)-(2). The State must prove these elements beyond a reasonable doubt. See Scott v. State, No. 06-21-00141-CR, 2022 WL 13643270, at *7 (Tex. App.-Texarkana Oct. 24, 2022, no pet.) (mem. op., not designated for publication).

The use of deadly force, when justified, is a defense to murder. Gilbert v. State, 575 S.W.3d 848, 863 (Tex. App.-Texarkana 2019, pet. ref'd); see also Tex. Penal Code Ann § 9.02 ("It is a defense to prosecution that the conduct in question is justified under this chapter."); id. at §§ 9.31-9.32 (enumerating requirements for establishing claim of self-defense). Subject to certain exceptions, Section 9.31(a) of the Texas Penal Code, entitled "Self-Defense," provides that "a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Id. § 9.31(a). Section 9.32(a), entitled "Deadly Force in Defense of Person," further provides that "a person is justified in using deadly force against another":

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Id. § 9.32(a) (1)-(2).

A defendant has the burden of producing some evidence to support a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); see also London v. State, 325 S.W.3d 197, 202 (Tex. App.-Dallas 2008, pet. ref'd). The State has the burden of persuasion in disproving self-defense. See Zuliani, 97 S.W.3d at 594; London, 325 S.W.3d at 202. A jury's guilty verdict is an implicit finding rejecting the defendant's self-defense theory. London, 325 S.W.3d at 202.

Because the State bears the burden of persuasion to disprove self-defense by establishing its case beyond a reasonable doubt, we review sufficiency challenges to the jury's rejection of self-defense under the Jackson standard. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd). In resolving the sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted appellant's self-defense evidence, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Braughton v. State, 569 S.W.3d 592, 609 (Tex. Crim. App. 2018).

We must defer to the jury's determinations of the witnesses' credibility and the weight to be given to their testimony, as the jury is the sole judge of such matters. Mitchell v. State, 590 S.W.3d 597, 604 (Tex. App.-Houston [1st Dist.] 2019, no pet.) (internal citations omitted). Because self-defense is a fact issue to be determined by the jury, the jury is free to accept or reject any defensive evidence on the issue. Id. (citing Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)).

Appellant's self-defense claim is based on his statement to Kramer. Specifically, appellant argues that his statement shows he feared for his life when Crawford pushed him and "threw a jab." The statements of a defendant and his witnesses, however, do not conclusively prove a self-defense claim. Smith v. State, 355 S.W.3d 138, 146 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd).

In his statement to Kramer, appellant said that he arrived at the scene when Shay and Crawford were arguing, and he urged Shay and her associates to leave. When Crawford grabbed Shay, appellant tried to step in and break it up. Crawford pushed and hit him, so he grabbed a gun that Shay held in her right hand and shot Crawford once, either in the shoulder or on the side. According to appellant, he then "snapped back" and realized he had "messed up," and handed the gun back to Shay.

Appellant claimed he heard more shots on his way back to the car, and Shay had the gun at that time. When Kramer confronted appellant about an earlier statement in which he said he had a gun in his pocket, appellant said that wasn't true.

But the evidence also established other circumstances the jury could reasonably consider as appellant's consciousness of guilt. Appellant ran away after he shot Crawford. See Figueroa v. State, 250 S.W.3d 490, 503 (Tex. App.-Austin 2008, pet. ref'd) (evidence of attempting to flee may indicate consciousness of guilt).

Appellant also sent text messages saying he "f-d up," and "shot [someone] four times." The jury could also assess appellant's credibility by comparing his statement to Kramer that he shot Crawford one time to his text message saying he shot someone four times.

In addition, Johnson's testimony contradicts appellant's version of events. Johnson testified that he did not see Shay with a gun, and she was not known to carry one. Johnson never saw Crawford make any aggressive moves and Crawford appeared panicked and was walking around while on the phone. Johnson went inside his house for a minute because he knew something bad was going to happen when appellant went to his car. After returning to his porch, he saw appellant standing in the street and heard shots.

The jury was free to credit Johnson's testimony and reject appellant's version of events. See Saxon, 804 S.W.2d at 912 n.5. On the record before us, we conclude the jury could rationally have found beyond a reasonable doubt that appellant committed murder and rationally could have rejected his self-defense claim. Accordingly, we find the evidence legally sufficient to support appellant's conviction. Appellant's first issue is resolved against him.

B. Charge Error

In appellant's remaining three issues, he argues the trial court's jury charges contained three errors, two in the guilt/innocence charge and one in the punishment charge. Under Article 36.14, the trial court is required to give the jury a written charge "setting forth the law...